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acter of the power itself, require that it should be exercised exclusively by Congress, the subject, as we have already seen, is as completely taken away from the state as if its Legislature had been expressly forbidden to act on it. But the power now in question is held not to be of this description; and a state has a right, consistently with the provision in the Federal Constitution, to pass bankrupt and insolvent laws, provided they do not impair the obligation of contracts, and there be no act of Congress in force with which the state laws would come into collision. Nor is the right of a state to pass bankrupt laws extinguished by the enactment of a uniform law by the Legislature of the Union; but is only suspended while the law of Congress exists, and so far only as the state law might be found to conflict with it. While the act of Congress remains in force, the power of the state continues over such cases which the act of Congress does not embrace. Hence the power of passing insolvent laws, not coming within the technical description of bankrupt laws, is always in force; and from the expiration or repeal of a bankrupt law of Congress, the ability of the state to exercise its concurrent power in regard to bankruptcy, qualified as I have mentioned, immediately revives.

The Legislature of the Union, then, possesses the power of enacting bankrupt laws, and those of the states of passing insolvent laws;* and a state has, moreover, authority to pass a bankrupt law when no act of Congress exists on the subject with which the state law might conflict; but no state bankrupt or insolvent law is permitted to impair the obligation of

* Mr. Justice Story, however, observes, in reference to the case of Sturges vs. Crowninshield, that "no distinction was ever pracSically, or even theoretically, attempted to be made between bank ruptcies and insolvencies."-Comm., 1106.

contracts. There is this farther limitation upon the power of the several states to pass either bankrupt or insolvent laws-that they cannot, in the exercise of that power, act upon the rights of citizens of other states; and hence the greater necessity of investing Congress with power to establish a uniform system of bankruptcy throughout the Union; as a discharge under a state law would be no bar to a suit by a citizen of another state in the courts either of the United States, or any other state than that in which the discharge was obtained. It only operates upon contracts made within the state: between its own citizens or suitors

subject to state powers.* And it is a principle of universal law, that the municipal law of the state is the law of the contract made and to be executed within the state, and that it travels with it, whereso ever the parties to it may be found; unless it refet to the law of some other country, or be immoral, or contrary to the policy of the country where it is sought to be enforced; and, consequently, the discharge of the contract, or of the party where the contract was made, is a discharge everywhere. But a discharge under a state law is no bar to a suit on a contract not existing when the law was passed; as the exercise of the power remaining in the states to pass bankrupt and insolvent laws does not, in the sense of the Federal Constitution, impair the obligation of posterior contracts, but only of those made antecedently to the law.

The first bankrupt law passed by Congress pursued strictly the power vested in that body, and was in its terms confined to merchants and traders. It was but a few years in operation, and was suffered to expire by its own limitation. Nor was any attempt made

* 12 Wheaton, 213.

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for a long time to revive the system; and whenever
afterward, the effort was made, it was unsuccessful,
until the last session of Congress. The obstacles to
its revival were such as to repress every hope of re-
newing the experiment until a material change was
wrought in public opinion. These objections were,
in the first place, the difficulty of defining, to the sat-
isfaction of all parts of the Union, the precise class
of debtors who could, consistently with the constitu-
tional jurisdiction of Congress, be made subjects of
a bankrupt law. It seemed, on all these occasions,
to be taken for granted that the power of Congress
extended no farther than to bankruptcy in its techni-
cal and limited sense, by which its operation is re-
stricted to merchants and traders.
But the more gen-
eral, and, perhaps, more substantial objection, was the
expense, delay, and litigation which had been found
to attend its proceedings; and the still more griev-
ous abuses and frauds to which the system leads,
notwithstanding the vigilance and integrity of those
to whom its administration was committed. It was
observed by the chancellor and the judges of the
Supreme Court of New-York, in a report made to
the Legislature of that state, by whom their opinions
had been requested as to the expediency of the in-
solvent laws, that, "judging from their former expe-
rience, and from observation in the course of their
judicial duties, they were of opinion that it was a
source of fraud and perjury. They were apprehen-
sive," they stated, "that the evil was incurable, and
arose principally from the infirmity inherent in such
a system." With respect to the infirmities of the
English system of bankruptcy, which are the growth
of more than two centuries, during which it has been
constantly under the view of Parliament, and matu-
ring by the wisdom of a succession of distinguished

judges, the late Lord Eldon, one of the ablest min isters and soundest lawyers of modern times, after his appointment as chancellor, took the earliest opportunity to express his indignation at the frauds which had been committed under cover of that system, and emphatically remarked, that "the abuse of the bankrupt law was a disgrace to the country.” In the face of such testimony, thus derived from men of the greatest learning and experience in the practice and administration of the law both in England and in this country, the friends and advocates of the bankrupt system have persevered, and by straining the constitutional point, and inducing Congress to adopt a latitude of construction which had not been thought of on any of the former occasions, eventually procured the passage of an act which, under the title of a Bankrupt Law, embraces provisions peculiar to insolvent laws, rendering it the voluntary refuge of the debtor, and extending its benefits to every description of persons owing debts, with the exception of those created in consequence of a defalcation as a public officer, or as an executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity. It moreover subjected merchants, traders, bankers, factors, brokers, and underwriters to be declared bankrupt on the petition of their creditors, and proof of their having committed an act of bankruptcy. And this measure prevailed more from the atrophy under which commercial enterprise and credit had laboured for the few preceding years, than from real conviction of its consistency either with the provisions of the Constitution, or the rules of sound policy. It was, indeed, considered as a temporary expedient, to be abandoned when it had performed its office, and the causes which produced it had ceased to operate; and it

has, accordingly, been since repealed. None of the states have enacted bankrupt laws, technically so called. Most of them, however, have permanent insolvent laws; but, inasmuch as they cannot discharge the debtor from the obligation of his contract, and imprisonment for debt has been abolished in many states, the operation of those laws is, in effect, confined to the person of the debtor in the states where that relic of a barbarous age is still preserved,

"And where he cannot be discharged,

Till nature tire with its own weight, and then
Is he but more undone to be at liberty."

LECTURE X

ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT RELATIVE TO CERTAIN MISCELLANEOUS OBJECTS OF GENERAL UTILITY.

THE first to be enumerated in this class is the power "to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their writings and discoveries."

The claims of authors and inventors are so congenial to our notions of natural justice, and accord so harmoniously with the ultimate objects of society in establishing the rights of property, that, at first sight, it seems strange that the existence of this right should ever have been made a question. It was so, however, in the great case of literary property which arose in England. It was, nevertheless, finally settled, by a solemn judgment of the House of Lords, that, although such right had existed at common law, yet that

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